The main legal point established in the judgment is the application of Section 44 of the Transfer of Property Act and Section 4 of the Partition Act in property disputes involving family members and strangers, emphasizing the protection of family members against intrusion by outsiders into the dwelling house and the conditions for the exercise of the right of pre-emption under Section 4 of the Partition Act.

JUDGMENT :

A.K. RATH, J.

Plaintiff no.2 is the appellant against confirming judgment. The suit was for permanent injunction.

2. The case of the plaintiffs is that the suit land was jointly recorded in the name of Gobinda Rout, Musei Rout, Banei Rout, Ananda Rout and Dinabandhu Rout. They were the members of the joint family. Their dwelling house exists over the suit land. The successors in interest of the above tenants including the plaintiffs are in occupation of the suit land. The suit land has not been partitioned by metes and bounds. Defendant nos.1 and 3 are strangers to the family of the plaintiffs and defendant no.4. They have fraudulently obtained a registered sale deed from defendant no.4 measuring an area A0.02.2 of the suit land comprising the private joint passage. The sale deed is a nominal one. They tried to disturb the peaceful possession and enjoyment of the suit homestead land and obstructed the joint passage. With this factual scenario, the suit was instituted seeking the relief’s mentioned supra.

3. The defendants filed written statements denying the assertions made in the plaint. The case of the defendants is that the plaintiff and defendants are the descendants of a common ancestor, namely, Uchhab. They are all members of the family. The homestead land and agricultural lands were joint family properties of Raghu and Chandri. After the death of Raghu and Chandri, their successors-in-interest possess the land separately for their convenience. In the last settlement, some of the properties were jointly recorded, whereas some properties were separately recorded. Plot no.214 measuring an area about A0.09 dec., on which the ancestral dwelling house of the parties stands, was recorded in the name of the ancestors of the parties. The suit plots were recorded in the last settlement as house site and bari land in the name of Gobina, Kusei, Ananda, Kanhu and Dinabandhu, the successors of the plaintiffs and defendant no.4. They partitioned their properties. The south-eastern portion measuring an area of A0.02.2 links fell to the share of defendant no.4. The defendant no.4 had transferred the same to defendant nos.1 to 3 on 10.11.77 by means of a registered sale deed. Possession of the land was delivered to the aforesaid defendants. The matter was agitated before the Consolidation Officer, who after due enquiry, recorded the name of defendant nos.1 to 3 along with the share holders.

4. On the inter se pleadings of the parties, the learned trial court framed five issues. The parties led evidence. The learned trial court came to hold that the plaintiffs and the defendants are descendants of a common ancestor. Their dwelling house stands over plot no.214. The defendants 1 to 3 are not stranger to the family. The suit is not maintainable. Held so, it dismissed the suit. The unsuccessful plaintiffs challenged the judgment and decree of the learned trial court before the learned A.D.J., Jajpur in Title Appeal No.19 of 1984/75 of 1987, which was eventually dismissed.

5. The appeal was admitted on the following substantial question of law:

“Whether the lower appellate court committed an error of record in saying that the plaintiffs never pleaded a case of Section 44 of the T.P. Act and Section 4 of the Partition Act and further the provision of Section 4 of the Partition Act does not apply to a case of a stranger-purchaser on the ground that he stepped into the shoes of a co-sharer.”

6. Heard Mr. S.K. Samantray, learned Advocate on behalf of Mr. S.P. Mishra, Senior Advocate for the appellant. None appeared for the respondents.

7. Mr. Samantray, learned Advocate for the appellant submitted that the courts below have committed a manifest illegality in holding that the plaintiff and defendant no.1 to 3 are co-sharers. The sale deed was a nominal one. The courts below failed to frame an issue as to whether there was earlier partition b